Sunday, September 14, 2014

Do Competitive Spirit Competitions Offer Athletic Opportunities that Count Under Title IX?

As the school year gets underway in Texas, high school students there have the opportunity for the first time to compete in a statewide cheerleading competition sanctioned this summer by the state's interscholastic athletic league (the UIL) on a one-year trial basis. The four-day competition will be based on "what cheerleaders do during a pep rally or on the sidelines, without the
high-flying tosses and difficult gymnastics found in competitive cheer" -- according to the UIL's executive director. The league was reportedly motivated to add the cheerleading competition in order to ensure that school districts' cheerleading programs comply with its health and safety regulations.

Ensuring the safety of cheerleading participants is an important objective, and I support the league's decision to create a "Game Day Cheer" competition in Texas on these grounds. Separately, however, it is important that school districts who decide to participate in this competition do so because they wish to enhance extracurricular opportunities for the students involved, and not because it counts as a source of athletic activities under Title IX.

While the Department of Education's Office for Civil Rights does presume that activities recognized by the institution's athletic association count as a source of athletic opportunities that should be counted under Title IX, this presumption can be rebutted by evidence that the activity in question is not similar in nature to the other athletic opportunities supported by the institution. The factors that are used as a the basis of this comparison include how the activity is administered (i.e., by the athletics department, like other sports), how the activity is structured in terms of having practice and competition schedule that is comparable to other sports, that opportunities to compete in a post-season tournament are, like in other sports, based on regular season results, and that selection for the activity is based on athletic ability. The application of these factors raises doubts about the ability of Texas competitive cheer to count as a source of Title IX opportunities. Moreover, the judge in the Quinnipiac case determined that the competitive cheer team at issue in that case did not count as a source of athletic opportunities under Title IX because too many of the team's competitions emphasized non-athletic factors such as spirit-raising. Given that Texas's state championship deliberately emphasize spirit raising to the stated exclusion of athleticism, it would seem to be disqualified from the Title IX analysis for that reason as well.

To be clear, I found no suggestion that the UIL is promoting competitive cheer as a means for its member school districts to comply with Title IX. However, I did note that just as the UIL endorsed competitive sideline cheer, it rejected proposals to sanction water polo and bowling, both of which could have served as sources of athletic opportunities for girls. I worry that this sends the wrong message to school districts that they can add competitive sideline cheer instead of other girls sports, when for schools lacking in compliance with the three prong test, this is not legally the case. Any Texas school district that uses competitive cheer opportunities to suggest the appearance of gender balance in the distribution of athletic opportunities is taking a legally vulnerable position that would be hard to defend to OCR or to a federal court.